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Booth, Tracey --- "Restoring Victims' Voices: Victim Impact Statements in the Sen" [2005] ALRCRefJl 16; (2005) 86 Australian Law Reform Commission Reform Journal 59


Reform Issue 86 Winter 2005

This article appeared on pages 59 - 62 of the original journal.

Restoring victims' voices: Victim Impact Statements in the sentencing process

By Tracey Booth*

It is well established that the principal parties to adversarial proceedings under our modern criminal justice system are the state—in a representative capacity for the community—and the accused, and each are separately represented.

Despite their integral involvement in an offence, victims of crime have not been regarded as stakeholders in the legal processes and their role has traditionally been limited to that of a witness in proceedings if required.

However, the past two decades have witnessed enormous change in the status of the crime victim in penal policy—from outsider par excellence1 to becoming ‘the centre of contemporary penal discourse’.2 The increasing prominence of victims in criminal justice policy and process has been well illustrated by waves of legislative reform in most Western jurisdictions recognising and promoting the rights of crime victims through the promulgation of rights charters, and the provision of support services and benefits.

Reforms that aim to provide pertinent information, victim assistance and compensation for victims of crime have been generally welcomed as appropriate mechanisms through which to acknowledge victims and express society’s compassion for them. More controversial have been those reforms granting victims of crime limited participatory rights in formal legal proceedings, namely the submission of victim impact statements (VIS) in the sentencing process.3

VIS are tendered by the victim to the court either in writing or, in some jurisdictions, orally, after conviction and prior to sentencing of the offender. Although there are significant variations in legislative frameworks with regard to such matters as the definition of ‘victim’, the contents of VIS and the presentation of VIS, typically VIS provide the court with information detailing the harm suffered by victims as a result of an offence. In a few jurisdictions in the United States, victims of crime can also use their VIS to express an opinion about the offender and the appropriate sentence in the circumstances. However, such matters are considered controversial and, in most jurisdictions, viewed as irrelevant to the sentencing process and inadmissible.

Legislative provisions also vary in the definition of offences for which VIS may be tendered although the majority of jurisdictions tend to limit those offences to crimes of violence. In most jurisdictions, VIS can be submitted by both primary victims and family victims of crime. The primary victim is a person who has suffered harm as a direct result of the offence, whereas the family victim is a usually a close relation of the primary victim in circumstances where the primary victim has died as a direct result of that offence.

Instrumental purposes of VIS

The purposes of VIS are usually expressed in instrumental terms. From an instrumental perspective, VIS are said to enhance particular aims of sentencing, retribution and rehabilitation, as well as serve public policy concerns related to the alleviation of victim dissatisfaction with the criminal justice system.

Victim impact evidence is intended to be a factor to be taken into account by the court for the purposes of determination of penalty. By virtue of the retributive function of sentencing, an offender deserves to be punished in proportion to his or her ‘just deserts’. The penalty imposed should be proportional to the objective seriousness of the offence and the seriousness of an offence is measured by the harm caused by the offence and the degree of culpability of the offender.4 Thus, in providing the court with details of the harm suffered by the victim as a result of the offence, VIS allow the court to more accurately determine the seriousness of the offence, make an informed sentencing decision and enhance proportionality and accuracy in sentencing.5

In R v P, the Federal Court said:

‘There is no question that increasing public concern about the position of victims of crime in the criminal justice system has been accompanied by repeated instances of judicial recognition that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process...[T]hat reliable information of that nature should be presented is in the public interest, not only in the interest of the injured victim...since a proper sentence should not be based on a misconception or ignorance of the salient facts.’6

The NSW Law Reform Commission has argued that victim impact evidence could also contribute to the rehabilitation of the offender.7 VIS disclosed in court directly confront the offender with the effects of the crime on the victim particularly in circumstances where the VIS is presented to the court orally. Offender recognition of the wrongfulness of the crime and its human consequences may lead to repentance and more readily promote accountability and responsibility on the part of the offender.8

Another instrumental purpose of victim impact evidence is located in the impact of consumerism over the past two decades, which has transformed the criminal justice system into a ‘service to be measured and consumed’.9 Dissatisfaction of victims of crime with the criminal justice system has been well documented and in recent years, government policies have sought to remedy victim alienation, increase victim satisfaction with criminal justice processes and restore the dignity of crime victims.10 Thus, the purposes of VIS are often articulated as giving victims of crime a ‘voice’ in criminal proceedings and redressing the balance between the offender and the victim in an offender-oriented criminal justice system.11

The continuing debate

Much of the controversy surrounding VIS has centred on the integrity of the sentencing process and problematic sentencing outcomes.12 Many critics argue that VIS are designed to serve punitive government policies because of their likely impact upon sentencing outcomes. On this view, taking account of victim impact evidence skews the retributive focus of sentencing and overemphasises the specificity of victim harm at the expense of offender culpability. As a result, VIS can lead to harsher penalties and undermine fundamental sentencing principles such as parity, uniformity and predictability because similar cases might be disposed of differently depending on the weight attached to victim harm in a particular case.

Also contentious is the extent to which the objective nature of the sentencing process is threatened by the introduction of emotionalism into the proceedings. Victim impact evidence is highly subjective, describing intensely personal responses to the crime and generally expressed in emotive and evocative language.13 The emotional nature of victim input has fostered concerns that sentencing judges might be distracted from the rational, objective sentencing approach that is favoured and fundamental sentencing principles will be undermined. These problems are exacerbated by oral presentation of VIS, a major issue in capital sentencing matters in the United States.

VIS from family victims have been particularly controversial because of concerns that consideration of such evidence could threaten the objectivity of the sentencing process and result in penalties reflecting the comparative worthiness of the deceased relative to other dead victims and/or articulate response of family victims. In NSW, the Supreme Court has declined to take VIS from family victims into account in determining penalty because:

‘It would be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in one case than it is in the other.’14

More general administrative concerns have focused on the likelihood that consideration of VIS during the sentencing process will overburden the criminal justice system, prove costly and cause delays.

Research findings

Significantly, these concerns have not been borne out by research findings. Studies conducted in various jurisdictions including Australia, Canada, the United States and the United Kingdom during the past 15 years reveal that VIS have had no significant effects upon sentencing outcomes, court outcomes and processes and on sentencing patterns generally.15 A major study conducted in South Australia concluded that VIS have not undermined fundamental principles underlying the criminal justice system; victims have not been transformed into parties to the proceedings; nor has victim participation compromised defendants’ rights.16

However, if this is the case, it is then argued that VIS fail to achieve other instrumental purposes of reducing victim dissatisfaction and alienation. Given the research findings, VIS can be characterised as symbolic rather than meaningful and victims of crime submit their VIS with false expectations. Critics point to studies that have indicated that victims, who think of their VIS in instrumental terms, are disappointed when their VIS do not impact on sentence.17 Consequently, it is argued that VIS are counter-productive, may cause further trauma for victims and certainly do not increase levels of consumer satisfaction with the criminal justice system.

This argument assumes that victims of crime submit VIS primarily for the purpose of influencing the penalty imposed. However, this image of the vengeful victim is not reflected in the research and it would be erroneous to assume a generic victim response.18 Victims submit VIS for a myriad of reasons, including a desire to influence penalty, but also to take the opportunity to speak, to be heard and to be acknowledged as stakeholders in the process.

Moreover, victim disappointment stemming from false expectations can easily be avoided. Prior to submitting a VIS, victims should be told that a VIS is only one factor that a court will consider when determining the type and severity of penalties.

Shifting the debate

More recently, the debate has shifted from instrumental to expressive and communicative purposes of VIS.19 These purposes are served in two significant ways. First, by giving victims a voice, a VIS enables victims to communicate directly with both the court and the offender. Through their VIS, victims of crime are able to recount their experiences, express their feelings about the harm they have suffered and be involved in the sentencing experience. A victim impact statement is really the only opportunity that victims have to communicate directly with the offender and the court and it is particularly effective if it is presented orally. Research demonstrates that a majority of victims of crime wish to participate and provide input, even when they think their input might be irrelevant for sentencing purposes.

In recent years, we have witnessed a shift from a conventional model of criminal justice to an increasingly popular restorative approach to criminal justice. This shift has reflected a concern for victims and acknowledgement of crime victims’ stake in the process. Communication between the victim and the court and between the victim and the offender is said to introduce a restorative element to the sentencing proceedings without undermining the traditional form of adversarial criminal proceedings.20 The restorative elements are located in hearing and listening to the victims tell their story and overt acknowledgment of victim experiences.

Second, the expressive function of VIS is part of the expressive and communicative function of punishment more generally. By acknowledgement of VIS and reference to the victim’s words in the course of judgment, courts are able to communicate a message that is overtly responsive to the legitimate interests of victims and reflects our community’s changing sensibilities in this context. The court communicates both a message of sympathy and clear recognition that these victims have been wronged. Recent research indicates that judges are taking the opportunity to refer to the victim in their sentencing remarks and that such developments are appreciated by victims.21 The relevance and purpose of VIS from this perspective is to give the court scope to express changing values and expectations of the community and also victims of crime generally.

Conclusion

During the past two decades, the crime victim has gained political and penal prominence and is now regarded as a legitimate stakeholder in sentencing and the criminal justice process. It is neither possible nor desirable to revert to an era in criminal justice when the crime victim was invisible. VIS serve important expressive and communicative purposes and represent a positive innovation in the sentencing process.

* Tracey Booth is a Lecturer in Law at the School of Law, University of Western Sydney.

Endnotes

1. M Ryan, Penal Policy and Political Culture in England and Wales (2003).

2. D Garland, The Culture of Control (2004).

3. In Britain, victim impact evidence is referred to as a victim personal statement.

4. Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

5. R v P [1992] FCA 626; (1992) 111 ALR 541.

6. Ibid, 545.

7. New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996).

8. J Roberts & E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223.

9. M Ryan, Penal Policy and Political Culture in England and Wales (2003), 131.

10. E Erez, ‘Integrating a Victim Perspective in Criminal Justice Through Victim Impact Statements’ in A Crawford & J Goodey (eds), Integrating a Victim Perspective Within Criminal Justice (2000).

11. T Booth, ‘The Dead Victim, the Family Victim and Victim Impact Statements in NSW’ (2000) 11 (3) Current Issues in Criminal Justice 292.

12. A Ashworth, ‘Victim Impact Statements and Sentencing’ (1993) Criminal Law Review 498; E Erez ‘Who’s Afraid of the Big Bad Victim?’ (1999) Criminal Law Review 545; T Booth, ‘The Dead Victim, the Family Victim and Victim Impact Statements in NSW’ (2000) 11 (3) Current Issues in Criminal Justice 292.

13. T Booth, ‘Voices after the Killing: Hearing the Stories of Family Victims in NSW’ (2001) Griffith Law Review 10(1) 25, M Hinton ‘Guarding Against Victim-Authored Impact Statements’ (1996) 20 Criminal Law Journal 310.

14. Hunt J in R v Previtera (1997) 94 A Crim R 76.

15. E Erez, ‘Integrating a Victim Perspective in Criminal Justice Through Victim Impact Statements’ in A Crawford & J Goodey (eds), Integrating a Victim Perspective Within Criminal Justice (2000); J Roberts, ‘Victim Impact Statements and the Sentencing Process: Recent Developments and Research Findings’ (2003) 47 Criminal Law Quarterly 365.

16. E Erez, L Roeger & F Morgan, Victim Impact Statements in South Australia: An Evaluation (1994).

17. J Roberts & E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223.

18. H Strang, Repair or Revenge: Victims and Restorative Justice (2002).

19. T Booth, ‘Homicide, Family Victims and Sentencing: Continuing the Debate about Victim Impact Statements’ (2004) 15(3) Current Issues in Criminal Justice 253; J Roberts & E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223.

20. J Roberts & E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223, 227.

21. T Booth, ‘Homicide, Family Victims and Sentencing: Continuing the Debate about Victim Impact Statements’ (2004) 15(3) Current Issues in Criminal Justice 253; J Roberts & E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223, 231.


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